The Doctrine of Stare Decisis - Term Paper Example

Lord Denning in Davis v Johnson [1979] AC 264, 278-282 said (referring to the Court of Appeal) that "while the court should regard itself as normallybound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong” Consider and critically discuss the arguments for and against this proposition. Word Limit: 1500 words In general terms courts are either bound by statutory interpretation or by the doctrine of precedent when making decisions in a trial. There are, however, occasions where a judge might depart from a previous decision of the court. It is common practice for judges to rely on the doctrine of precedent to assist them in their decision making process. It is this doctrine that has the effect of binding judges to the use of decisions in previous cases. In order for a precedent to be binding the decision must have been given by a more senior court or one at the same level and the facts of the case must be sufficiently similar. Under the doctrine of ‘stare decisis’ judges have been forced to stand by the decisions of earlier courts. The doctrine of precedent only applies if the court issuing the binding decision is of sufficient seniority. For this reason judges in the courts of first instance are not allowed to issue binding precedents. A precedent will be established from the ratio decidendi of the case. When reaching their decision judges can refer to obiter dicta rulings as persuasive arguments for the decision they are making, but such rulings are not binding on subsequent case law. Many precedents set years ago remain in force today. A prime example of this is the definition of murder that was defined by Lord Chief Justice Coke in 1605. although there have been a few minor adaptations to the wording to make the meaning simpler the basic definition remains unchanged, and is still used in assisting the court in reaching a verdict of murder. Although precedents are intended to bind subsequent cases of a similar nature the House of Lords has the discretion not to follow these precedents. Diversions from previous decisions are infrequent and can cause confusion when judges decide not to follow the decision of a previous court. This discretionary power of judges to be able to ignore previous rulings has caused uncertainty within the courts with regard to the relevance and applicability of the doctrine of precedent. The discretionary power given to the House of Lords to be able to deviate from previous rulings came into effect through the 1966 Practice Statement. In issuing this it was decided that by binding courts to previous decisions a restriction was being placed on the development of the law and this could lead to injustice for the accused. Prior to the 1966 Practice Statement the House of Lords and effectively bound itself to follow the doctrine of precedent. This was as a direct result of the decision in London Tramways Co v London County Council 1898 in which the House of Lords concluded that the highest appeal court should be the final decision maker. They felt that allowing the House of Lords to overrule previous case law could lead to unnecessary litigation as individuals continued to bring actions hoping that the court would overrule a previously decided case. The Practice statement had the effect of bringing the House of Lords in line with other superior courts such as the US Supreme Court. It has taken quite some time for the House of Lords to take advantage of their increased powers. One of the first cases where the judges exercised this power was in the case of Conway and Rimmer (1968)1. Within the civil law system Herrington v BRB (1972)2 was the first time that the practice statement was used in which the decision given in Addie v Dumbreck (1929)3 was overruled. In criminal law R v Shivpuri (1987)4 was the first example of the usage of the statement. This case overruled the precedent set by Anderton v Ryan. (1985)5. Although the House of Lords has acquired the power to overrule precedents cases such as C v DPP (1995) seem to suggest that the judges would often prefer it if this were not the case. The decision in this case was challenging the age of criminal responsibility. The problems faced by the judges in this case has since been resolved through the Crime and Disorder Act 1998. Allowing the court to set new precedents in this manner demonstrates the way in which judges can become involved in the law making process. In a recent 2007 case the decision of the judge had the effect of making a new precedent. This was the case of Lawntown Ltd v Camenzuli and another [2007]6. This case involved an application for the variation of a restrictive covenant on a property that had been purchased by the plaintiff. It was the contention of the respondent that allowing the variation would set a new precedent which could allow future covenants to be carried at will. The respondents argued that in allowing the variation land that had previously been protected from developments through covenants would no longer be safe. In this case the judge allowed the variation and dismissed the subsequent appeal lodged by the respondents. The court stated that in this case the need for housing in this particular area was of greater importance than the protection of the land from development. The court made reference to the fact that the local authority had already granted permission to the applicant before they had completed the purchase. It was the opinion of the court that the local authority would have already considered the covenants before granting permission and must have concluded that the need for housing should supersede the need to protect the land from development. In another 2007 case the judge demanded to know whether they were bound through the doctrine of precedent to reach the same decision as given in an earlier case where the facts had been similar. This was the case of R v M (No 2) [2007]7 where the doctrine of precedent appeared to suggest that the court should be bound by the decision of the court in R v Simpson [2003]8. In this case it was the opinion of the court of appeal that the judge was entitled to depart from the original decision in the interests of justice. The case centred on the storage of electronic information that in the 2003 case had not been allowed to be adduced as evidence of the involvement of the defendant in terrorist activities. The court stated that the decision in Simpson had been wrongly decided and in the light of recent terrorist attacks and threats there was a need to reform the decision on this topic for the sake of national security. To date the courts will only allow a judge to challenge a precedent in the higher courts; however, the discretionary power of judges does allow minor deviations to occur where an injustice might be caused or where the needs of society demand such a change. The above demonstrates that binding judges to previously decided precedents can lead to an injustice particularly in cases where the original decision has been wrongly decided. It could be argued that allowing judges to set new precedents could lead to injustices as well especially in criminal cases where the setting of a new precedent might allow a guilty person to be acquitted. From the above it can be concluded that although the doctrine of precedent is useful in guiding judges in their decision making process, it is essential that judges are not totally bound by previous decisions. In some instances previous cases have been wrongly decided. Without the flexibility of the House of Lords to be able to change these decisions further injustices would be likely to occur. It could be argued that this discretion should be passed to the lower courts. At present there have been no such instances, and it is likely that the power will remain with the House of Lords only as that is the last bastion to which an aggrieved party can appeal. Bibliography Barnett, H, Constitutional and Administrative Law, 6th Ed. Abingdon: Routledge‑Cavendish, 2006 Carroll, A, Constitutional & administrative Law, Revised Ed,1998, Pitman Publishing Civil Procedure Volume 2, 2002, White Book service, Sweet & Maxwell de Smith, S. and Brazier, R. Constitutional and Administrative Law, 8th edn (Penguin, 1998) House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report of Session 2003–04, HC 422, London, The Stationery Office Limited, 16 March 2004. House of Lords Select Committee on the Constitution, Waging War: Parliament’s role and responsibility, HL Paper 236, London, The Stationery Office Ltd, 27 July 2006. Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748). Translated and edited by Anne Cohler, Basia Miller, Harold Stone. (New York: Cambridge University Press, 1989) Slapper, G & Kelly, D The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd Read More